Timmany v. Benko

195 A.D.3d 1212

150 N.Y.S.3d 142

Kathleen A. TIMMANY, Respondent,

v.Richard BENKO et al., Defendants,andMichael Bishop et al., Appellants. (Action No. 1.)

Virginia Verhoff, Respondent,

v.Richard Benko et al., Defendants,andMichael Bishop et al., Appellants. (Action No. 2.)

532055

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 22, 2021

Decided and Entered: June 10, 2021

Hite & Beaumont, PC, Albany (John H. Beaumont of counsel), for appellants.

E. Stewart Jones Hacker Murphy, LLP, Troy (Mark R. Sonders of counsel), for Kathleen A. Timmany, respondent.

Law Office of Brian W. Devane, Delmar (Brian W. Devane of counsel), for Virginia Verhoff, respondent.

Before: Egan Jr., J.P., Lynch, Clark and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J. Appeal from that part of an order of the Supreme Court (McGrath, J.), entered March 2, 2020 in Rensselaer County, which denied a motion by defendants Michael Bishop and Lori Bishop for summary judgment dismissing the complaints against them.

In May 2016, during a party hosted by defendants Lori Bishop and Michael Bishop at their home, a portion of the second-story deck collapsed causing serious injuries to plaintiffs Kathleen A. Timmany and Virginia Verhoff who were on the deck at the time of the collapse. Plaintiffs each commenced two separate personal injury actions – one against the Bishops, Equinox Construction Corporation and defendant Richard Benko, the builder and the original owner of the house who constructed the deck, respectively, and a second against defendant George Galib, who bought the property in 2002 and sold it to the Bishops in 2006. Issue was joined and, as relevant here, the Bishops asserted cross claims for indemnification and contribution against Equinox Construction and Benko. Thereafter, the actions against Equinox Construction were discontinued. The parties then agreed to consolidate Timmany's two actions (now action No. 1) and to consolidate Verhoff's two actions (now action No. 2) and these two actions were joined for the purposes of the trial. Discovery ensued, during which plaintiffs and the Bishops, among other things, retained engineers to inspect the collapsed deck and surrounding wall area and opine on the cause of the collapse and whether such cause would have been visible to the Bishops prior to the collapse. Both experts agreed that the deck collapsed due to extensive dry rot in the rim joist of the house to which the ledger board of the deck had been attached. They noted, as contributing causes of the collapse, the construction of the deck without metal flashing and the use of common nails, rather than bolts, to affix the deck to the house. The experts disagreed as to whether the rot would have been visible to the Bishops and, in particular, Michael Bishop, who performed exterior maintenance on the property and other occasional upkeep below the deck, including shortly before the May 2016 party.

The Bishops moved for summary judgment dismissing the complaints against them, contending that the record conclusively established that they lacked actual or constructive notice of the alleged defect that caused the deck's collapse. Plaintiffs opposed the motion and cross-moved for partial summary judgment on the issue of the Bishops' actual or constructive notice. Supreme Court denied the motion and cross motions.¹ The Bishops appeal the denial of their motion for summary judgment.

We affirm. On a motion for summary judgment, the moving party "has the burden to establish ‘a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’ " ( Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 [2014], quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [citation omitted]). As relevant here, the Bishops bore the initial burden of demonstrating that they had maintained the property in a reasonably safe condition and that they did not create or have actual or constructive notice of the specific alleged dangerous condition that resulted in plaintiffs' injuries (see Hill v. Aubin, 188 A.D.3d 1520, 1521, 136 N.Y.S.3d 506 [2020] ; Firment v. Dick's Sporting Goods, Inc., 160 A.D.3d 1259, 1259–1260, 74 N.Y.S.3d 671 [2018] ; Torgersen v. A & F Black Cr. Realty, LLC, 158 A.D.3d 1042, 1042, 71 N.Y.S.3d 672 [2018] ; Kraft v. Loso, 154 A.D.3d 1265, 1265, 63 N.Y.S.3d 566 [2017] ). "[C]onstructive notice, in contrast to actual notice, requires that the condition be visible and apparent and has existed for a sufficient period of time prior to the accident to permit a defendant to discover it and take corrective action" ( Mister v. Mister, 188 A.D.3d 1334, 1334–1335, 135 N.Y.S.3d 165 [2020] [internal quotation marks and citations omitted]; see Hill v. Aubin, 188 A.D.3d at 1521, 136 N.Y.S.3d 506 ).

In support of their motion, the Bishops submitted, among other things, the affidavits of Michael Bishop and the Bishops' engineer, as well as the written summary of a comprehensive building inspection, denominated the "Executive Summary," that was performed for Galib, the prior owner. Michael Bishop averred that during the 10–year period since the Bishops purchased the house, he did "general maintenance work on the deck, both on the deck and underneath the deck." He contended that he "never made any observations whatsoever that indicated any concerns related to the safety or stability of the deck" and "did not observe any broken, cracked, deteriorating or decaying parts or components of the deck that appeared to need replacement or repair." The Bishops' engineer inspected the deck a few days after the collapse and reviewed photographs that were taken of the rim joist, ledger board and the house, including the concrete block wall beneath the deck. He opined that "the cause of the partial deck collapse was the development of dry rot in the rim joist to which the collapsed portion of the deck had originally been attached." The engineer opined further that "the...